Designer Skin LLC v. S & L Vitamins, Inc., et al.
Matthew L. Seidl v. Greentree Mortgage Company, et al.
30 F.Supp.2d 1292, 1998 U.S. Dist. Lexis 17253 (D. Colo., October 16, 1998)
Defendant Greentree Mortgage Company ("Greentree") is engaged in the mortgage business. To promote its business, Greentree decided to send a "spam" advertisement to prospective customers. Greentree retained third party defendant Mark Van Keuren ("Van Keuren"), with whom it had no prior dealings, to mount this spam campaign. Greentree supplied Van Keuren with the text to be inserted in the body of the advertisement. It left to Van Keuren the selection of the recipients of the "spam", as well as the method of its distribution. Van Keuren created an e-mail containing defendant's designated text. He also placed the address "email@example.com" in the From and Reply To fields of the e-mail. The e-mail in question did not, however, originate from that location. Rather, "firstname.lastname@example.org" was a domain name owned by the plaintiff, Matthew Seidl ("Seidl").
The spam campaign had predictable results. Undeliverable e-mail was "bounced back" or returned to plaintiff's domain. Similarly, over 7000 recipients of defendant's spam registered their objections in reply e-mails also delivered to plaintiff's domain. This prevented plaintiff from using his computer for three days.
Plaintiff commenced suit, charging that by sending "spam" with a forged header, defendant Greentree had committed a number of wrongs, including trespass to chattel (Seidl's computer), as well as violations of the Colorado Deceptive Trade Practices Act, Colo. Rev. Stat. §6-1-105, and the Junk Fax Law, 47 U.S.C. §227.
To aid his cause, plaintiff created a web page for the express purpose of publicizing this lawsuit. On this site, plaintiff posted a "demand" letter written by his counsel to defendant Greentree, outlining the wrongs plaintiff alleged that Greentree committed and demanding redress therefor. Plaintiff also posted a Press Release about the action prepared by his counsel, as well as several articles about the suit first published by others.
Defendant counterclaimed, charging that plaintiff and his counsel, by posting this material on plaintiff's web site, had committed libel per se. Defendant also asserted RICO claims against plaintiff and his counsel as a result of their attempts to obtain redress for defendant's 'spam' campaign, and the reregistration of plaintiff's domain name "email@example.com."
The parties cross-moved for summary judgment. The court granted defendant Greentree's motion and dismissed the claims brought against it, on the grounds that Van Keuren was an independent contractor for whose acts Greentree could not vicariously be held liable. Said the court:
Plaintiff's counsel sought to dismiss defendant's libel per se claims on the grounds that as an attorney, she has immunity from defamation claims for statements she makes "... during the course and as part of a judicial proceeding in which [she] participates as counsel if it has some relationship to the proceeding." The court found, however, that under prior precedent, this absolute privilege does not extend to statements given by a lawyer to the press concerning a pending lawsuit.
Nor, held the court, does this privilege extend to statements made by a lawyer via the Internet to the public at large. Said the court:
The court nonetheless dismissed defendant's claims, however, because it found that the allegedly defamatory statements at issue were non-actionable statements of opinion that, in most instances, also failed to be sufficiently plain on their face to be libelous per se. Finally, the court dismissed defendant's RICO claims.